Special assessment
Disputes are assigned to the most appropriate dispute resolution pathway.
Motor accidents disputes - 1999 scheme
Disputes are assigned to the most appropriate dispute resolution pathway.
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Lodgment
- Lodgment
- Assessment conference
- Agreements and decisions
Lodgment
When to lodge a dispute resolution application
A special assessment dispute may be lodged with the Commission when there is a dispute in connection with a claim between a claimant and an insurer that is one of the types of disputes listed below.
For claims made before 1 October 2008:
- a late claim may be made in accordance with s 73 (s 96(1)(a))
- the claimant has a satisfactory explanation for non-compliance with the police accident report requirement under s 70 (s 96(1)(b))
- a claim may be rejected for non-compliance with s 74 (s 6(1)(c))
- a payment is required to be made under s 83 (not being a medical dispute that may be referred to a medical assessor under Part 3.4) (s 96(1)(e))
- the insurer is entitled to delay the making of an offer of settlement under s 82 on the grounds that any particulars about the claim are insufficient (s 96(1)(d)).
For claims made on or after 1 October 2008 the above matters plus:
- for the purposes of s 34 (Claim against Nominal Defendant where vehicle not identified) there has been due inquiry and search to establish the identity of a motor vehicle (s 96(1)(a1))
- a payment is required to be made under s 84A (Duty of insurer to make interim payments in case of hardship) (s 96(1)(g))
- a request made of a claimant under s 85 (Duty of claimant to co-operate with other party) is reasonable or whether a claimant has a reasonable excuse for failing to comply (s 96(1)(g))
- the insurer is entitled to give a direction to the claimant under s 85B (Consequences of failure to provide relevant particulars of claim) (s 96(1)(h))
- a claim that is taken to have been withdrawn under s 85B should be re-instated (s 96(1)(i)).
How to lodge an application
Applications to resolve a special assessment dispute should be lodged via the Commission’s online portal.
If a self-represented claimant is unable to use the portal to lodge their application, they may contact the Commission to obtain a PDF copy of the form or have an application mailed to them. These applications may be lodged via email or post, or in person at the Commission.
An application for special assessment should include a statement of the issues in dispute. All relevant information must be attached to the application. An application should not be lodged until all relevant material is available because it may not be possible to include further information later in the dispute resolution process.
How to respond to an application
The respondent will receive a sealed copy of the application from the applicant and must respond within 20 working days from that date.
Note that there is a reduced timeframe for replies in the case of hardship applications which are expedited.
If a self-represented respondent is unable to use the portal to lodge their response, they may contact the Commission to obtain a PDF copy of the form or have a copy mailed to them. These forms and the accompanying documents may be lodged via email or post, or in person at the Commission.
All relevant information that has not been included by the applicant should be attached by the respondent at the time the response is lodged. Respondents may not be able to submit further information at a later time.
Assessment conference
If the parties do not reach an agreement over the course of one or more teleconferences, the matter may be scheduled for an assessment conference. An assessment conference is a face-to-face meeting conducted by a Member, who will attempt to bring the parties to agreement but will make a final determination where agreement cannot be reached. Before the assessment conference, the Member may ask the claimant and other witnesses to attend and they may be asked questions by the Member and lawyers from both parties.
What to expect at an assessment conference
The assessment conference is usually held at the Commission’s premises in Sydney, or at one of the Commission’s regional locations. In some circumstances a videoconference may be used instead of a face-to-face meeting. The Member who conducted the teleconference will usually also hold the assessment conference.
The assessment conference may be attended by:
- the claimant
- the claimant’s legal representative
- the insurer
- the insurer’s legal representative
- an interpreter, if needed.
The Member will explain the process, assist the parties to identify the issues in dispute, then attempt to bring the parties to an agreement about some, or all, of the issues. The parties may be allowed some time to discuss the issue between themselves.
As the Member is independent and impartial, they will not talk to any party unless all other parties are present.
If the dispute is resolved at this stage, the proceedings will end, the Commission will generally issue a Certificate of Determination, and the Commission's file will be closed.
If the Member forms the view that the dispute is not capable of being resolved by agreement of the parties, the Member will proceed with the assessment of the claim.
The Member will hear evidence from the claimant and any witnesses. The Member and the representatives from both parties may ask the claimant and any witnesses questions about the motor accident and injuries.
The Member will also review the information and documentation provided by the parties and discuss the issues about the claim or the dispute. The claimant may be asked to attend another assessment conference or provide additional information or documentation about the claim if the Member thinks it necessary.
In conducting a claims assessment, the Member must make a determination on the issue of liability and specify the amount of damages for the claim. In doing so, they should have regard to information that is conveniently available to them.
The Member may include an assessment of the claimant’s costs in their decision.
What happens after the assessment?
The Member will consider all the available documentation and information, including any information provided by the claimant or any witnesses at the assessment conference hearing (if asked to attend one).
The Member will provide the claimant (or their lawyer, if they have one) with a certificate setting out the decision and the supporting reasons. In most cases the certificate and reasons will be sent within three weeks after the assessment conference.
Is the Member’s decision binding?
Assessments about the amount of compensation to be paid in relation to a claim can be binding on the insurer. If there is no dispute about liability for the claim and the claimant accepts the Member’s assessment, the insurer must pay the amount of compensation assessed. If there is a dispute about liability for the claim, the Member will still assess the claim, but the assessment is not binding and both the claimant and the insurer can reject the assessment.
The claimant must decide whether to accept or reject the Member’s assessment. To accept the assessment the claimant (or their lawyer) must notify the insurer in writing within 21 calendar days of the certificate being issued, or the claimant will be taken to have rejected it and the insurer will have no obligation to pay the amount assessed. If the claimant rejects the assessment, or is taken to have rejected it, the claimant may need to go to Court if they want to pursue their claim.
How long will an assessment take?
The Commission aims to finalise most assessments within five to six months from the time an application is received for assessment. The process may take longer if the claimant or the insurer has not provided all relevant documentation and information.
There are several steps in the process and at each step both the claimant (or their lawyer) and the insurer have the opportunity to comment and/or provide information.
Agreements and decisions
What is the status of the decision?
The decision of the member is binding on the parties.
How long does resolving a dispute take?
The time taken to resolve a dispute depends on:
- the issues in dispute
- the standard of preparation by the parties
- the willingness of parties to genuinely attempt resolution
- whether a decision is appealed.
The Commission aims to resolve disputes as quickly as possible and will encourage the parties to resolve their dispute at the earliest opportunity.